Arizona Libertarian Party; Michael Kielsky, Plaintiffs-Appellants,
Katie Hobbs, in her official capacity as Secretary of State of Arizona, Defendant-Appellee.
and Submitted March 12, 2019 San Francisco, California
from the United States District Court for the District of
Arizona D.C. No. 2:16-cv-01019-DGC David G. Campbell,
District Judge, Presiding.
B. Hall (argued), Center for Competitive Democracy,
Washington, D.C., for Plaintiffs-Appellants.
M. Karlson (argued) and Joseph E. La Rue, Assistant Attorneys
General; Mark Brnovich, Attorney General; Office of the
Attorney General, Phoenix, Arizona; for Defendant-Appellee.
Before: J. Clifford Wallace, A. Wallace Tashima, and M.
Margaret McKeown, Circuit Judges.
Rights / Elections
panel affirmed the district court's summary judgment in
favor of Arizona's Secretary of State in an action
brought by the Arizona Libertarian Party challenging, under
the First and Fourteenth Amendments, a state law requiring up
to 1% of voters eligible to participate in Arizona's
primary to sign a nominating petition for a Libertarian
candidate to earn a place on the primary ballot.
the balancing framework set forth in Anderson v.
Celebrezze, 460 U.S. 780 (1983), and Burdick v.
Takushi, 504 U.S. 428 (1992), the panel first held that
the State's signature requirement imposed a minimal
burden on the Libertarian Party's right to access the
primary ballot. Accordingly, the panel determined that a less
exacting scrutiny was appropriate. The panel concluded that
Arizona's signature requirements reasonably furthered
Arizona's regulatory interest in preventing voter
confusion, ballot overcrowding, and frivolous candidacies and
justified the modest burden on the Libertarian Party's
right to ballot access.
panel rejected the Libertarian Party's contention that
the Arizona law infringed upon its right to free association
by effectively requiring its candidates to solicit signatures
from non-members. The panel held that any burden on the
Libertarian Party's associational freedom was modest, and
again applying less exacting scrutiny, the panel credited
Arizona's important interests to justify the reasonable
panel further rejected the Libertarian Party's contention
that Arizona's signature requirement violated equal
protection, noting that the Libertarian, Democratic, and
Republican Parties were all subject to the same statutory
requirements. The panel observed no equal protection issue in
Arizona's treatment of the Green Party, a new party that
was subject to different statutory requirements.
McKEOWN, Circuit Judge.
again, we have before us a challenge to Arizona's
requirements to earn a place on the ballot. See,
e.g., Ariz. Green Party v. Reagan, 838 F.3d 983
(9th Cir. 2016); Nader v. Brewer, 531 F.3d 1028 (9th
Cir. 2008). The Arizona Libertarian Party challenges under
the First and Fourteenth Amendments a state law requiring up
to 1% of voters eligible to participate in its primary to
sign a nominating petition for a Libertarian candidate to
earn a place on the primary ballot. The district court
granted summary judgment to the Arizona Secretary of State
(the "Secretary"), and we affirm.
Arizona law, there are two types of political parties:
"established" parties and "new" parties.
A party is "established" in a jurisdiction if it
(i) obtained at least 5% of the total votes cast in the prior
general election, or (ii) maintains membership exceeding
0.66% of registered voters in that jurisdiction. Ariz. Rev.
Stat. § 16-804 (applying to state, county, city, and
town elections). An established party is entitled to
"continued representation" on the general election
ballot. Id. The Libertarian, Democratic, and
Republican Parties are established statewide.
2016, to qualify for the primary ballot, an established party
candidate needed to submit signaturesexceeding a certain
percentage (ranging between 0.5% and 2%, depending on the
office sought) of the party's registered voters in the
jurisdiction where he sought election. Ariz. Rev. Stat.
§ 16-322(A) (2015). A candidate was permitted to submit
signatures from party members, members of any new party, or
unaffiliated registered voters. Id. § 16-321(D).
2015, the Arizona legislature amended the signature
requirements for established party candidates. 2015 Ariz.
Sess. Laws Ch. 293, §§ 2-3 (H.B. 2608). Now, to
qualify for a primary ballot, an established party candidate
must submit signatures exceeding a certain percentage of
"qualified signer[s]," which include the
party's registered voters, as well as all new party
voters and unaffiliated registered voters. Ariz. Rev. Stat.
§ 16-321(F). The amendments reduced the signature
threshold for each office to between 0.25% and 1%.
Id. § 16-322(A). In 2016-the first election
governed by the amended rules-there were significantly fewer
Libertarian candidates on the primary and general election
ballots than in prior elections. See generally Ariz.
Sec. of State, Historical Election Results &
(last visited May 7, 2019) (collecting data for recent
"new" party is subject to different rules. A new
party must first submit a petition for recognition and
signatures from eligible voters exceeding 1.33% of total
votes cast statewide in the prior gubernatorial election.
Ariz. Rev. Stat. §§ 16-801(A), 16-803. After doing
so, the party's candidates are eligible to pursue
placement on the primary and general election ballots for the
next four years. Ariz. Rev. Stat. § 16-801(B). To retain
its recognition and ballot eligibility at the end of the four
years, the party must either qualify as an established party
or file another petition for recognition and the accompanying
signatures. Id.; see Ariz. Rev. Stat.
qualify for the primary ballot, a new party candidate must
submit signatures exceeding 0.1% "of the total vote for
the winning candidate or candidates for governor or
presidential electors at the last general election within the
district." Ariz. Rev. Stat. § 16-322(C). The
Arizona Green Party first qualified as a new party in 1990,
and, never having qualified as an established party, has
successfully re-filed petitions for new party recognition and
the accompanying signatures several times, most recently in
2014. Since the beginning of 2017, Arizona has
permitted digital solicitation and streamlined submission of
voter signatures through an online portal. Ariz. Rev. Stat.
Arizona law, an established party member may not vote in
another party's primary, but it is up to the established
parties to decide whether new party members or unaffiliated
voters can participate in their primaries. See Ariz.
Rev. Stat. § 16-467. The Libertarian Party excludes such
voters, while the Democratic and Republican Parties do not.
April 2016, the Libertarian Party and its chairman Michael
Kielsky (collectively, the "Libertarian Party")
filed this action challenging the primary signature
requirements. The district court denied the Libertarian
Party's request for a preliminary injunction prohibiting
enforcement of the amended requirements for the 2016
election. The parties filed cross-motions for ...